Ordinarily, a baseball fan struck by a batted ball during a game is barred from suing the team or stadium to recover for injuries suffered. For nearly a century, fans have been said to assume the risk of being struck by a batted ball, something that is considered a fundamental part of the game of baseball (see Greg's posts here, here and here). As an aside, I've never been a fan of this rule. If spectators could sue stadiums after suffering injuries, one of two things would happen. Either stadiums would raise ticket prices, to offset potential litigation exposure, or they would put up nets or walls to protect fans and reduce the likelihood of injuries. Most defenders of the rule are aghast at the latter possibility -- unobstructed views and the prospect of catching (or being hit by) a batted ball are considered to be fundamental to baseball enjoyment. My guess is that faced with increased tort exposure, stadiums would raise ticket prices. Why is that so wrong? If all fans enjoy the benefits of unobstructed views and the fun of catching or getting hit by a ball, what is wrong with having all fans pay a small amount for that privilege?
A few years back, a California court carved out an exception to the general rule that fans can't recover for batted balls. In Lowe v. California League of Prof. Baseball, 65 Cal.Rptr.2d 105 (Cal.App. 1997), a fan sued after he was struck by a foul ball. The fan argued that he had been distracted by the antics of the team mascot. The court allowed his case to go forward, holding that baseball teams and stadiums have a limited duty not to increase the risk of injury to spectators and that mascots are not an essential part of the game.
In a case published this spring, an Ohio court disagreed. The plaintiff in Harting v. Dayton Dragons Professional Baseball Club, L.L.C., 870 N.E.2d 766 (Ohio App. 2007) was injured at a minor league baseball game. She claimed that she was distracted by the antics of the Famous San Diego Chicken, who entertained fans during the game. The court didn't buy it:
Harting argues that because she was distracted by the antics of the Chicken, who was allegedly performing during the game, she was relieved from the assumption of any inherent risk associated with the game. This argument ignores the fact that team mascots and their antics are common phenomena and the mascots are normally present during the entire course of the game. In many cases, the team mascots are more popular than the team itself. The fact that the Chicken appeared while the game was being played does not absolve Harting from the duty to protect herself from the ordinary risks inherent in the sport. . . .The best part of the opinion, of course, is the following line: "On March 6, 2006, the Chicken filed its motion for summary judgment."
Given the prevalence of costumed team mascots at sporting events such as baseball, football, or basketball games, it is perfectly reasonable for a spectator at one of these games to expect to observe those mascots during the normal course of the game. The fact that Harting was allegedly distracted by the Chicken during the bottom of the sixth inning when she was struck by the foul ball did not negate her duty to pay attention to the action taking place on the field.
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